Subrogation and the Sudden Emergency Doctrine

By Gary Wickert | November 3, 2021

It’s happened at least once to every subrogation professional. A significant claim file involving an auto accident in which liability appears to be a lock, suddenly goes into a tailspin when the other side denies the claim because the tortfeasor suffered a heart attack or blacked out as a result of some other sudden medical emergency. You inquire into the law and learn that almost every state will avoid imposing liability where an auto accident is the result of a sudden and unforeseeable physical incapacity. You struggle to find ways to attack and defeat the sudden emergency defense so you can recover your or your client’s significant subrogation interest, but evidence and documentation all seem to be peculiarly in the possession and control of the very defendant you want to sue. What should you do?

The sudden emergency doctrine can best be described as follows:

A person who is confronted with a sudden and unexpected perilous situation not of his or her own making and who acts as would a reasonably prudent person under the circumstances will not be held liable even if later reflection shows that the wisest course was not chosen.

The doctrine varies slightly from state to state, but most states require that in order to avoid liability under the sudden emergency doctrine, the defendant must show:

  1. He or she suddenly became physically incapacitated;
  2. The incapacity was not reasonably foreseeable;
  3. The incapacity rendered the defendant unable to control his or her vehicle; and
  4. The accident was the result of a loss of control resulting from the incapacity.[i]

In most states, the burden of proving each of these elements rests with the defendant which is raising the defense, assuming the plaintiff has otherwise proven his or her case. Some states, such as Virginia, have held that the sudden emergency doctrine is not even an affirmative defense which needs to be pled and proven by the defendant, and say there is no burden on the defendant to prove its factors by a preponderance of the evidence.[ii] At the same time, those courts do require that the defendant bring forward sufficient evidence to permit a jury to conclude that the defendant’s actions were taken a qualifying “sudden emergency.”

Scope of Doctrine

To fall within the scope of this defense, the defendant does not need to die or lose consciousness. The incapacity must only be severe enough to render the defendant incapable of controlling his or her vehicle. The incapacity could be something as benign as a leg cramp or sneeze.[iii] So how simple is it for a defendant to simply claim he sneezed or had a leg cramp? It’s almost impossible to prove he didn’t. In addition, medical testimony is not usually necessary for a defendant to succeed with this defense, because the issue isn’t why but whether there was incapacity, and the defendant might be the only one who really knows or can prove that.

Where a sudden emergency confronts a driver, he or she is not expected to exercise the usual degree of care or even the best judgment. Instead, the driver experiencing a sudden emergency must only use an “honest exercise of judgment.”[iv] It is important to note that only those who are driving carefully and prudently are entitled to the sudden emergency defense. The defense also doesn’t apply to mental illness, such as a case where a person, believing herself to be the object of a conspiracy, turned her car and drove the wrong way on the freeway, driving head-on into oncoming traffic in an attempt to commit suicide.[v] The defendant in Ramey v. Knorr did not meet the test of sudden mental incapacity because the evidence clearly established she had notice and forewarning of her mental condition, had experienced a mental breakdown, and believed the person she worked for was conspiring to kill her by poisoning her. Even though Knorr had no history of being dangerous or violent, or any problems with her driving, that is not required in order to get around the sudden emergency doctrine. Earlier symptoms of a mental disability may constitute adequate notice and forewarning that driving is probably not a good idea and is negligence in and of itself.


Foreseeability and timing are the two most litigated components involving the sudden mental incapacity which must accompany a successful sudden emergency defense. Foreseeability requires that the defendant be on notice of a risk of sudden incapacity. A previous history of seizures, taking certain medications, or other medical conditions place the defendant on notice that while convenient, getting in a car and driving could possibly endanger other people and property. The focal point is what the defendant knew when he or she got behind the wheel that day, and whether the decision to drive was reasonable. Simply bringing up these points will take the wind out of the sails of almost any sudden emergency defense, as the defense is thrown down rather cavalierly by defense adjusters almost routinely, without much forethought as to whether it actually applies. This shifts the attention from the moment of driving, when the defendant might sympathetically not be blamed for what happened, to the moment of starting the car, when he or she is to blame. Epileptic individuals may claim that their seizures were under control, to which the reply would be, “obviously they were not.”

If a person is suffering from chronic cardiac medical problems, argue that it is foreseeable that a heart attack could be imminent. Some cases, however, have held that as a matter of law, such an attack is not foreseeable if there is no reason to believe that it is imminent.[vi] Usually, however, if you can convince a jury that something is foreseeable; the defense will not be applicable.[vii] Family medical history, near-misses, etc., are all relevant and admissible to show foreseeability and negligence.


It is necessary that the incapacity underlying the defense actually precede the accident. Much like cases involving cattle which wander into a roadway and cause injury, timing must often by shown by circumstantial evidence. It is important to relay to the defense adjuster that circumstantial evidence is allowed and can be convincing in many cases. Juries love to play Sherlock Holmes and deduce things themselves. Leading a jury to water and letting them drink on their own is a powerful litigation tactic.

Whether the defendant suffered a heart attack or other condition before an accident or as a result of the accident is often a critical question in sudden emergency cases. Defendants can fall asleep, get into a serious or fatal crash, and then suffer a heart attack while injured and waiting for medical help. The importance of timing should be obvious. Medical testimony, the position of the deceased defendant’s body after the accident, evidence of the defendant’s behavior just before the incident, etc., are all important pieces of evidence in building a case to defeat the sudden emergency doctrine.

Accident reconstruction can show that the path the vehicle followed just before the accident would not be the path of a vehicle driven by somebody who was unconscious. If the defendant survives, testimony of first responders or paramedics that he or she was alert and unimpaired can be powerful evidence refuting the allegation of a heart attack or other medical condition. Remember, the basis of the sudden emergency doctrine is that the standard of care required of a party depends on the particular circumstances, and the circumstances would include whether an emergency exists. It will take work to discover those circumstances and put them before a jury. If the subrogation case is large enough, it might be worth the investment of time and some attorney’s fees to file suit and conduct some discovery, putting pressure on the other side and putting them to the task of shoring up the allegations of sudden emergency they have been making.

Other Tortfeasors to Pursue

In addition to trying to defeat the sudden emergency doctrine, care should be taken to determine if other persons or entities might have some responsibility for causing the accident. If the defendant was on medication at the time of the accident – something that should always be inquired into – questions regarding the prescription and any warnings that came with or didn’t come with the medication should be asked.

Some jurisdictions allow liability to attach to a health care professional for negligence which results in injury to a third party, while others do not. Those which do not say that the physician doesn’t owe a duty to the ultimate victim or his subrogated insurance company. Others allow such liability in appropriate cases and refuse to declare that physicians absolutely have no such duty. In addition, some courts don’t want to hold doctors to the impossible task of prescribing medication for a patient while taking the interests of non-patients into account. The more foreseeable an incident is, the more likely the court will allow liability to extend to a physician or other health care provider.

Drug manufacturers have also been looked at as possible target defendants in such cases. This is especially viable where the packaging contains no warnings or inadequate warnings to put the consumer on notice that his or her driving might be impaired while taking the medication. Such warnings are routinely given by drug manufacturers these days, but it doesn’t hurt to look into it.

Swerving to Avoid an Animal in the Road

The sudden emergency doctrine is often used when a tractor trailer swerves to avoid colliding with an animal in the roadway, often resulting in the truck overturning and causing collisions with other vehicles who happen upon the overturned truck. However, aggressive subrogation professionals should remember that prudent drivers who react appropriately when confronted with a deer in the headlights can usually avoid the devastation and carnage that results from acting inappropriately.

When claims professionals receive claims involving deer collisions, they must take the time to investigate a few miles downstream of the crash and look for Deer Crossing signs. Those signs are there for a reason and are placed in areas known for high deer traffic to warn motorists and truck drivers. Deer are most frequently hit between 4:00-10:00 p.m. and again between 4:00-8:00 a.m. The real culprits in these collisions, however, are drivers who swerve to avoid hitting a deer. Swerving while operating a large tractor trailer can result in vehicles moving into oncoming traffic, crashing into trees and other objects, or even rolling over. The safest and most prudent course of action when faced with a deer in the headlights is to slow down as much as possible and let your vehicle strike the deer if it unsafe to swerve. While deer may cause damage to a vehicle and with smaller vehicles even injury, there is a much greater potential for serious injury and damage if the driver swerves and strikes a tree, telephone pole, or another vehicle. This is especially true if a tractor-trailer or commercial truck is involved. Experts advise drivers to take their foot off the gas and maintain a straight course to reduce damage and avoid injuring himself or others. The website succinctly says, “It is best to lock the brakes, jam the horn, and (if time allows) duck low behind the dashboard.” The Wisconsin Department of Transportation says, “…the safest option is to hit the brakes and the deer…If you swerve suddenly, you can lose control and then you risk a more serious collision with another vehicle or a stationary object such as a tree or utility pole.” “Do not swerve” is the universal consensus regarding the prudent course of action to take when a deer appears in the roadway.

The sudden emergency doctrine is a doctrine of tort law which states that a driver confronted with a sudden and unexpected perilous situation not of his or her own making and who acts as would a reasonably prudent person under the circumstances will not be held liable even if later reflection shows that the wisest course was not chosen. This defense will likely be used by a driver who swerves to avoid a deer and causes other serious damage, injury, or death. However, evidence that the overwhelming consensus is that the prudent action is to not swerve can help sway a jury and a third-party liability adjuster and convince them that the actions of the defendant driver were not the actions a reasonably prudent person would have taken. Facing this defense is better than no subrogation potential at all. In North Carolina, for example, the defense requires the driver to be “suddenly and unexpectedly confronted with imminent danger to himself or others.” If you get a statement that indicates that the driver swerved to avoid harming the poor deer, the defense might not be applicable. By comparison, the defense would never be available to a driver who swerved to avoid a squirrel. Therefore, simply by showing no appreciation for or consideration of danger to the driver you can negate the sudden emergency doctrine. This is easy to do in collisions involving lower speeds. Remember, the sudden emergency doctrine is only applicable when a collision or accident is shown to have occurred as the result of a sudden emergency not of a party’s own making.[viii]

Roll Up Sleeves

When a liability adjuster announces he or she is going to throw down the sudden emergency card when confronted with a subrogation demand, rather than giving up, the subrogation professional should take this as a cue that he or she is going to have to work for the subrogation dollars. The defense is often thrown down with little or no basis for doing so. If it wasn’t an effective tactic, liability adjusters wouldn’t do it. When confronted with the defense, the timing, foreseeability and individual circumstances of the loss should be looked at carefully in preparation for building a subrogation case.

[i] Rogers v. Wilhelm-Olsen, 645 S.E.2d 671 (Ky. App. 1988); Mobley v. Est. of Johnson, 432 S.E.2d 425 (N.C. App. 1993).

[ii] Vahdat v. Holland, 649 S.E.2d 691 (Va. 2007).

[iii] Zabunoff v. Walker, 13 Cal. Rptr. 463 (Cal. App. 1964) (sneeze); Reeg v. Hodgson, 202 N.E.2d 310 (Ohio App. 1964) (leg cramp).

[iv] McKee by McKee v. Evans, 551 A.2d 260 (Pa. Super. 1988).

[v] Ramey v. Knorr, 124 P.3d 314 (Wash. App. 2005).

[vi] Hout v. Johnson, 446 P.2d 99 (Or. 1968).

[vii] Keener v. Trippe, 222 So.2d 685 (Miss. 1969) (fainting spell found to be foreseeable even though defendant had only had a two-month history of headaches and no history of fainting).

[viii] White v. Taylor Distribution Co., Inc., 753 N.W.2d 591 (Mich. 2008).

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About Gary Wickert

Gary Wickert is an insurance trial lawyer and a partner with Matthiesen, Wickert & Lehrer, S.C., and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. He can be reached at More from Gary Wickert

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